Over the past two years, employers have worked through a raft of changes to workplace laws. With the majority of those changes having taken effect, and a number of changes still coming on-line over the next six or so months, it is a good time to take a moment, and ensure your organisation is where it needs to be.

Secure Jobs, Better Pay

With the Secure Jobs Better Pay amendments having long been in operation, employers should now have well established plans and systems dealing with aspects such as:

• the prohibition on pay secrecy;
• managing fixed term employment (with a particular focus to ensure that the management of those relationships is not putting the employer at risk of breaching the anti-avoidance provisions);
• preventing sexual harassment and discrimination;
• extended paid family and domestic violence leave;
• increased flexibility with unpaid parental leave; and
• Enterprise Agreement making, including managing the potential for prolonged bargaining to become the subject of an intractable bargaining declaration.

Employers should have also established systems to ensure they are able to meet the enhanced requirements for considering and responding to requests for flexible work arrangements.  Since the changes’ introduction, there have been a number of decisions of the Fair Work Commission which confirmed the employer had reasonable business grounds for rejecting a request in circumstances where the employer:

• meaningfully discussed the request with the employee;
• genuinely sought to reach agreement with the employee, including by proposing alternate workable arrangements that sought to address the basis for the request where possible;
• considered the consequences of the refusal on the employee; and
• provided a comprehensive written response within 21 days of the request being made.

Closing Loopholes

With several aspects of the Closing Loopholes amendments now in effect, employers should have already:

• considered the likelihood and consequences of becoming the subject of a Regulated Labour Hire Arrangement Order; and
• ensured that their workplace practices and managers have been appropriately structured and trained to avoid breaching the new statutory protections for workplace delegates.

As the remainder of the Closing Loopholes changes progressively come on-line, employers should now be ensuring their practices and systems are ready and aligned to the new requirements.  The key dates and things employers should be preparing themselves for include:

1 July 2024

On 1 July 2024 new Workplace Delegate Rights provisions will be inserted into all Modern Awards.  The Fair Work Commission is currently undertaking a process to draft these provisions, but the current expectation is for the final provisions to be publish in late June.  This is likely to require a level of quick review and adaption to ensure compliance before those changes become operative on 1 July.

26 August 2024

From 26 August 2024:

• It will be ‘back to the future’ with respect to who is a casual employee and who is not, and who is an independent contractor and who is an employee. From that time, the determination of the character of those relationships will revert to being an assessment of the totality of the relationship in practice, not just the terms of the written agreement between the parties.
• The Right to Disconnect will apply. Employers should be actively using this time to ensure:
  • employment contracts contain appropriate clauses;
  • their relevant policies are up to date;
  • job descriptions accurately and fairly reflect the extent and nature of out-of-hours contact and responsiveness required for the position; and
  • managers and leadership are appropriately educated and trained.
• Independent contractors will have access to a new jurisdiction focused on addressing unfair contract terms. Accordingly, its important principals are reviewing their standard terms of engagement to ensure that the terms and conditions are appropriately balanced, not harsh, unjust or unreasonable, do not underpay the contractor (when compared to like employees), and reflect those matters that are reasonably necessary to protect the legitimate interests of the principal (or contractor).

Chris Oliver, Director